IMPLEMENTING NYS MANDATORY COMPLIANCE PROGRAMS A YEAR LATER: OMIG AND PROVIDER PERSPECTIVE. HCCA Annual Compliance Institute April 20, 2009

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1 IMPLEMENTING NYS MANDATORY COMPLIANCE PROGRAMS A YEAR LATER: OMIG AND PROVIDER PERSPECTIVE HCCA Annual Compliance Institute April 20, 2009 Robert A. Hussar, Esq. First Deputy NYS Office of Medicaid Inspector General James D. Horwitz, Esq. Vice President, Corp. Responsibility Glens Falls Hospital, Glens Falls, NY 1

2 The fine print Personal opinions and ideas for collegial discussion Acknowledgement-ideas and some materials from many sources-errors my own My assumption-usually it s the good guys who attend these programs If you have a question (unless you are a lawyer) someone else probably wants to know the answer If you find these slides useful, please use them The fine print (from the provider s perspective) Not here to sing Kumbaya with OMIG but some of survey responses were quite interesting. Survey provides one tool of assessing OMIG and may not be representative of the day-to-day issues that have been expressed to membership organizations representing various segments of the health care industry such as hospitals, nursing homes, and home health care agencies. 2

3 Mandated Provider Compliance Programs Every provider of medical assistance program items and services.shall adopt and implement an effective compliance program - Social Services Law 363-d LEGISLATIVE EXPECTATION: Social Services Law 363-d EFFECTIVE COMPLIANCE PROGRAMS WILL PREVENT AND DETECT FRAUD AND ABUSE... to organize provider resources to resolve payment discrepancies and detect inaccurate billings, among other things, as quickly and efficiently as possible, and to impose systemic checks and balances to prevent future recurrences. 3

4 Compliance Regulations Published January 14 th (draft), June 24 th (adoption) Effective July 1 st Enforcement October 1 st!!! Requires: those subject to Articles 28 and 36 of the Public Health Law; those subject to Articles 16 and 31 of the Mental Hygiene Law; and those that order services or supplies or receive reimbursement, directly or indirectly, or submit claims for at least $500,000 in a year to adopt/implement an effective compliance program. Annual certification Survey sent to memberships of Healthcare Association of New York State (HANYS) and Greater New York Hospital Association (GNYHA) Survey Monkey tool used 48 responses 88% from hospitals Remainder long term care, day treatment, behavioral health 40% NYC area; 60% throughout remainder of state 4

5 What is the total revenue of your organization? How many employees does your organization have? What Best Describes Your Program in What Best Describes Your Program in

6 The Survey reveals that most hospitals have not made material changes in their Compliance Programs as a result of the OMIG s October 2009 Regulations. This may be reflective of the fact that hospital compliance programs have matured during the 12 or so years since the OIG issued its first Hospital Guidance. In juxtaposition schools have been scrambling to institute programs in response to the regulations CMS 6

7 Where Does the Office of the Medicaid IG Fit? Audit work/recoveries Investigations and Criminal referrals Enforcement of Conditions of Participation and Quality as basis for payment Exclusion/penalty authority-individual, entity Integrity plans Mandatory compliance plans and Compliance Guidance The Survey reveals more and more audits with an attendant increased cost in addressing same. Audit repayments remain relatively stable although with an increase at the higher end. 7

8 If you underwent OMIG audits, what was the average cost per audit, including FTE time and external resources? 07 most did not track; those that did anywhere from $15k - $100k per audit 08 more track; those that did anywhere from $2k - $167k (1 response was 2 FTE plus the $167k legal expenses) 09 tracked as per 08: anywhere from $10k - $300k (1 response was 3 4 FTE plus $170k legal expense) 8

9 If there were audits, did you find: 92% found OMIG reasonable and fair ; 38.5% found not knowledgeable about health care operations. 9

10 Provider self-disclosure guidance Benefits Exemplify character of provider Demonstrate effectiveness of compliance program Possible: Flexibility of provider review Forgiveness of interest for a predetermined period Extended payback period Avoidance of sanctions and/or operating under a CIA Have you used the OMIG selfdisclosure protocol. If so, what amount was repaid? If there was a self-disclosure, did you find: 100% found OMIG reasonable and fair! 10

11 GNYHA is proud of the productive relationship we have developed with the OMIG, and we appreciate the OMIG's accessibility and interest in hospitals' concerns. While the voluntary survey used in this presentation is one positive tool in assessing provider relations with the OMIG, it does not, in our view, provide a thoroughly representative impression of the provider experience with the OMIG. GNYHA is in continual day-to-day contact with its members, and we regularly hear concerns that indicate a different experience from that expressed in this survey. Indeed, many of our members experience significant frustrations with the OMIG, which they and GNYHA continue to communicate to the OMIG. GNYHA looks forward to our ongoing work with the OMIG as we attempt to resolve these issues together. GNYHA COUNSEL S OFFICE 11

12 OMIG Review 3 Stages: Certification Preliminary Deep dive OMIG Compliance Review REVIEW A L K T A L K 12

13 DEMONSTRATING AN EFFECTIVE COMPLIANCE PROGRAM THE PROGRAM MEETS THE STATUTORY REQUIREMENTS (Structurally) THE PROGRAM WORKS (Operationally) CULTURE PROCESS OUTCOMES DEMONSTRATING AN EFFECTIVE COMPLIANCE PROGRAM THE PROGRAM MEETS THE STATUTE STRUCTURE Mandatory 8 Elements OMIG Risk Areas Compliance Officer / Committees / Hotline 13

14 Provider Compliance Programs - Elements Written policies and procedures. 1. An employee vested with responsibility for day-to-day compliance program operation. 2. Training and education of all affected employees and persons. 3. Communication lines to the responsible compliance position. 4. Disciplinary policies to encourage good faith compliance program participation. 5. A system to routinely identify compliance risk areas. 6. A system for responding to compliance issues as they arise. 7. A policy of non-intimidation and non-retaliation for good faith compliance program participation. Has OMIG requested proof of your compliance program? Other: Audit financial statements, management letter comments and internal control documents, organizational charts 14

15 Supplemental Guidance It s NOT JUST about Recoveries 8 elements plus.. Credentialing Mandatory Reporting of Adverse Events Governance * Quality * * Raises Compliance visibility/responsibility in both areas. Quality and Enforcement Has there been a systematic failure by management and the board to address quality issues? Has the organization made false reports about quality, or failed to make mandated reports? Has the organization profited from ignoring poor quality, or ignoring providers of poor quality? Have patients been harmed by poor quality or been given false information? 15

16 Does the CO attend quality assurance/improvement meetings or receive information regarding quality of care? Does the answer to the above reflect a change in response to the OMIG regulations? DEMONSTRATING AN EFFECTIVE COMPLIANCE PROGRAM THE PROGRAM MEETS THE STATUTE THE PROGRAM WORKS CULTURE PROCESS OUTCOMES 16

17 Who is signing or will sign the annual compliance certification form found on the NYS OMIG website? Has OMIG requested to interview members of the Board regarding your compliance program? Has OMIG requested to interview members of senior management regarding your compliance program? 17

18 THE OMIG HAS INDICATED THAT A YEAR FROM NOW, THE ANSWERS TO THESE QUESTIONS WILL BE VERY DIFFERENT. SIGNIFICANT EMPHASIS WILL BE PLACED ON THE CULTURAL CLIMATE OF COMPLIANCE AS EVIDENCED BY INTERVIEWS WITH BOARD MEMBERS, SENIOR LEADERS AND FRONT LINE STAFF. OMIG Compliance Review Support Culture Awareness Transparency 18

19 It is the large group of middle managers who are the key to bridging the chasm between legal requirements and compliance THE ROAD TO FRONT LINE STAFF: Demonstrated commitment by Board, Senior and General Management Continuous education Departmental Monitoring Plans Integration into the day-to-day fabric of the organization s operations 19

20 TONE AT THE TOP THE BEST 20

21 Is there a full time Compliance Officer? Who does the CO report to? Does the answer to the above reflect a change in response to the OMIG regulations? 21

22 How many full time dedicated employees support the compliance function (including the CO)? Since the promulgation of the OMIG regulations, does the above answer reflect: Culture Element 1: Polices and procedures who created? how distributed / explained? how often? Element 2: CO and committees who? how? resources / authority? other responsibilities? attendance/frequency? 22

23 Culture Element 3: Training / Education Method Message Frequency Element 4: Open lines of communication Tone at top Recognition of challenges Follow-through Culture Element 5: Disciplinary Policies communicated imposed proportional for offense / offender Element 6: Risk Analysis / Review planned completed reported 23

24 Culture Element 7: Responding to Issues timely thorough revisited Element 8: Non-intimidation / Non-retaliation DEMONSTRATING AN EFFECTIVE COMPLIANCE PROGRAM THE PROGRAM MEETS THE STATUTE THE PROGRAM WORKS CULTURE PROCESS Integration Assessment and audit Corrective action OUTCOMES 24

25 OMIG Compliance Review Provider Identification of Risk Areas Risk Assessments Audits Internal External Conflicts of Interests Corrective Action OMIG Compliance Review Responding to Compliance Issues Prompt Investigation Proper Mandatory Reporting Self-Disclosures 25

26 DEMONSTRATING AN EFFECTIVE COMPLIANCE PROGRAM THE PROGRAM MEETS THE STATUTE THE PROGRAM WORKS CULTURE PROCESS OUTCOMES Mission Integrity Repayments Disclosures Quality issues addressed PROGRAM INTEGRITY ON THE FRONT END - 4Rs OF PREVENTING FRAUD AND ABUSE REQUIRE, RECOMMEND, REVIEW, REWARD ~EFFECTIVE PROVIDER COMPLIANCE PROGRAMS ~ NY-mandatory effective compliance programs include: credentialing, background and exclusion/sanctions check risk assessments, audits and data analysis, remedial measures response to issues raised through hotlines, employee issues disclosure to state of overpayments received, when identified 26

27 Effective? How should OMIG determine whether compliance failures are indicative of an ineffective compliance program? How many failures? What kind of failures? What about efforts / accomplishments? What about the effective performance of the organization s core mission? 27

28 Attitude is Everything! Anger Denial and Isolation Bargaining Depression Acceptance A Couple of Final Thoughts.. It takes less time to do a thing right than it does to explain why you did it wrong - Henry Wadsworth Longfellow 28

29 Doing the Right Thing. The next level of motivation, synonymous with self-discipline, is when I do something on my own because I believe I should do it, even if I don t feel like it. Nobody is making me do it. I do it because I believe I should... People are better motivated by values than by compliance. If Disney Ran Your Hospital FREE STUFF! Model compliance programs-hospitals, managed care (coming soon) Over 1000 provider audit reports, detailing findings in specific industry Annual work plans (issued in April) New York excluded provider list Self-Disclosure protocol Corporate Integrity Agreements Listserv 29

30 Board Educati0n Critical QUESTIONS??? 30